Under sections 499 and 500 of the Indian Penal Code, defamation is a criminal offence. Defamatory acts can include “words either spoken or intended to be read”, signs or visible representations, which are published or put up in the public domain. The offence is punishable with up to two years imprisonment, a fine or both.

It is true that ‘defamation’ is one of the reasonable restrictions to free speech envisaged in the Constitution, but this is not enough to justify retaining its criminal component. Article 19(2) of the Constitution permits only “reasonable” restrictions upon the freedom of speech. For a law to be reasonable, it must demonstrate a degree of proportionality between the restriction, and the goal that is sought to be achieved. Criminal defamation fails the proportionality test, in general terms, as well as in the specific legal regime set up by Section 499 of the Indian Penal Code.

In general, criminal defamation is disproportionate because it uses the criminal law to prosecute a wrong that is purely private in nature. A private wrong is one that is purely between the offender and her victim, and has no implications for the society at large. For example, if I fail to control my dog, and it bites you, then you may sue me for compensation in a civil court. Society, the state, and the criminal law have nothing to do with it. However, if I murder a person, then it is not just about one individual taking the life of another, but has ramifications for public peace, order and security. This is why murder is a criminal offence, involves a term in jail, and is prosecuted by the state.

When defamation was first criminalised in medieval England, it had a public purpose. People vindicated insults to their honour by fighting it out in a duel. It was to suppress this kind of self-help regime, and assure people that they did not need to ventilate their grievances with swords and pistols, that defamation was criminalised. But now things have changed.

Many countries, including neighbouring Sri Lanka, have decriminalised defamation, which should be a civil offence alone. The court has unfortunately accepted the self-serving argument by the Centre that criminal defamation does not have a chilling, inhibiting effect on the freedom of expression. In the Indian context, criminal defamation is not generally a dispute between two individuals. It is invariably a shield for public servants, political leaders, corporations and institutions against critical scrutiny as well as questions from the media and citizens.

Subramanian Swamy vs Union of India is a depressing moment for free speech lawyers and activists. It is also (yet another) depressing moment for civil rights lawyers and activists, since it marks a continuing trend – that arguably began with Koushal vs Naz regarding the criminalisation of homosexuality – where two-judge benches decide important civil rights cases. The challenge to the validity of Section 499 and 500 of the IPC was undoubtedly the biggest free speech issue to have arisen in recent times. The two-judge Bench could have referred the matter to a Constitution Bench(a bench of at least five judges).